Hanks v. Hamman

• Decision Date: 20 March 1926
• Docket Number: (No. 1359.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: HANKS v. HAMMAN et al.
• Court: Texas Court of Appeals

282 S.W. 935

HANKS v. HAMMAN et al.

(No. 1359.)^*

Court of Civil Appeals of Texas. Beaumont.

March 20, 1926.

Rehearing Denied March 31, 1926.

Appeal from District Court, Liberty County; J. M. Combs, Judge.

Action of trespass to try title by Wyatt Hanks, through his next friend, H. E. Marshall, against George Hamman and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

William McMurrey, of Cold Springs, and H. E. Marshall and C. F. Stevens, both of Houston, for appellant.

E. B. Pickett, Jr., and P. C. Matthews, both of Liberty, and Gill, Jones & Tyler, of Houston, for appellees.

O'QUINN, J.

The following statement of the nature and result of the suit is taken from appellant's brief:

"This was an action of trespass to try title brought by Wyatt Hanks, a person of unsound mind, through his next friend, H. E. Marshall, against the appellees, George Hamman, J. P. Scranton, and Harry C. Hanzen. By the first amended original petition it was shown that H. E. Marshall had been appointed guardian of the estate of Wyatt Hanks, and he appeared in that capacity from that time on. In addition to the formal action of trespass to try title, plaintiff specially asked for the cancellation of a deed made by Wyatt Hanks to appellees, J. P. Scranton and Harry C. Hanzen, on February 8, 1925, on the ground that Wyatt Hanks was under an adjudication of insanity when the deed was made, and therefore incompetent to execute the same.

"Appellees answered by general denial and plea of not guilty, and they specially pleaded that Wyatt Hanks, on the 8th day of February, 1925, was of sound mind as a matter of fact, notwithstanding that he was then under the legal status of a person of unsound mind on account of the adjudication of insanity urged by the plaintiff. Appellees further sued in reconvention in trespass to try title. The land sued for by appellant and in reconvention sued for by the appellees is described as follows:

"All the oil, gas, and other minerals in and under the following described tract of land, together with the free rights of ingress and egress in and to said tract of land at all times for the purpose of developing the same for said oil, gas, and other minerals. Said tract of land being a part of the M. G. White league of land in Liberty county, Tex., and being particularly described by metes and bounds as follows: Being a part of said White league, abstract No. 117, and this tract being a part of lot No. 3, set aside to Sallie Chambers et al. in cause No. 3557, styled Westly Monroe v. Jessee Williams, by decree of record in Book E, page 154 et seq., of the minutes of the district court of Liberty county, Texas. Commence at the northeast corner of said lot No. 3, so set aside to Sallie Chambers; thence run southerly along the east line of said lot No. 3, 28.92 vrs. to a point for the northeast and beginning corner of the land herein described; thence N. 88 W., 390.6 vrs. to a point for the northwest corner of the land herein described; thence S. 2 W 29 vrs. to a point for the southwest corner of the land herein described; thence S. 88 E. 388.6 vrs. to a point in the line of said lot No. 3 for the southeast corner of the land herein described; thence northerly along the east line of said lot No. 3, 29.03 vrs. to the place of beginning, containing 2 acres of land.'

"Appellant filed his first supplemental petition in answer to the plea of reconvention of the appellees wherein he pleaded a general denial and not guilty and also again asked for the cancellation of the deed dated February 8, 1925, from Wyatt Hanks to appellees, on the ground that Hanks was a person of unsound mind at that time.

"The case was tried on May 29, 1925, before a jury and at the conclusion of the evidence the court peremptorily instructed the jury to find a verdict for appellees, which the jury did, and upon which judgment was entered."

From this judgment appellant brings this appeal.

Appellees also pleaded title in themselves by and through a deed executed by appellant February 8, 1925, in ratification of the prior conveyance by his guardian, C. H. Cain. However, they offered no testimony to show that at the time of executing said deed he had recovered his mentality, and so this defense passes out of the case. If the description of the land in the probate proceedings and guardian's sale was sufficient, then title to the land is in appellees, but otherwise appellant would be entitled to recovery. This is the controlling question in the case.

The record shows that C. H. Cain was duly appointed guardian of Wyatt Hanks, who was a minor, on December 15, 1916. An inventory of Hanks' estate was returned into court, showing the whole estate consisted of $1,200 in cash. March 5, 1917, Cain, guardian, made application to the court to invest the sum of $100 of his ward's money "in land," same being an undivided interest in the M. G. White league, situated in Liberty county, Tex., near what is now known and called the oil well of the Imperial Oil Company, about 3 miles south of the town of Liberty. It was shown that the name "Imperial Oil Company" was a mistake, and should have been "Empire Oil & Fuel Company," and that said company was the only company then operating on the White land. The court duly entered its order authorizing the investment of the $100 "into certain land * * * same being in and near the well now drilled and located upon the M. G. White league of land in Liberty county, Tex." March 15, 1917, the mineral interest, the property here in controversy, was duly conveyed by D. J. Harrison to Wyatt Hanks, the description being:

"All the oil, gas and other minerals in and under the hereinafter described land * * * lying and being situated in the county of Liberty and state of Texas, and being part of the M. G. White league, abstract No. 117, and being a part of lot No. 3, set aside to Sallie Chambers et al., in cause No. 3557, styled Westly Monroe v. Jessee Williams, by decree of record in Book E, p. 154 et seq., of the minutes of the district court of Liberty county, Tex., and being more particularly described by metes and bounds as follows: Commence at the N. E. corner of said lot No. 3 so set aside to Sallie Chambers. Thence run southerly along the E. line of said lot 28.93 vrs. to a point for the N. E. and beginning corner of the land herein described. Thence N. 88 W. 390.6 vrs. to a point for the N. W. corner of the land herein described. Thence S. 2 W. 29 vrs. to a point for the N. W. corner of the land herein described. Thence S. 88 E. 388.6 vrs. to a point in the E. line of said lot No. 3 for the S. E. corner of the land herein described. Thence northerly along the E. line of said lot No. 3, 39.03 vrs. to the place of beginning, to contain 2 acres of land."

On April 9, 1917, Cain, guardian, made application to the court to sell real estate belonging to the minor, Hanks, describing same as "an undivided interest in and to a certain part of the M. G. White league of land situated in Liberty county, Tex., same being about two acres, and being on the east side of the Trinity river, and about three miles south of the town of Liberty, Tex.," which was granted by the court on the 15th day of April, 1917, the order reciting that the application was for the sale of real estate belonging to the minor, Hanks, and described same as "an undivided interest in a certain part of the M. G. White league of land situated in Liberty county, Tex., same being about two acres, and being on the east side of the Trinity river and about three miles south of the town of Liberty, Tex."

April 18, 1917, Cain, guardian, made report to the court that he had made sale of the land to Harry Waite, for the sum of $200, and described the land as "an undivided interest in a certain part of the M. G. White league of land, situated in Liberty county, Tex., same being about two acres, and being on the east side of the Trinity river, and about three miles south of the town of Liberty, Tex.," which said sale was by order of the court confirmed on April 24, 1917, and, in obedience to the said order of confirmation of the court, Cain, guardian, April 24, 1917, executed to the purchaser, Harry Waite, a deed to said land, said deed reciting the probate proceedings relative thereto, and conveying to said Waite the land mentioned in said proceedings, describing same as "an undivided interest in a certain part of the M. G. White league of land situated in Liberty county, Tex., same being about two acres, and being on the east side of the Trinity river, and about three miles east of the town of Liberty, Tex."

No other land was ever inventoried as a part of the estate of the minor Hanks, and no other land was shown ever to have been conveyed to him. It is undisputed that the appellees own whatever title was acquired by Harry Waite by the guardian's deed in the proportion claimed by them in their pleadings.

Appellant's third assignment of error is:

"The district court erred in permitting the defendants to introduce in evidence, over the objections of the plaintiff, the following instruments, as shown by bills of exception Nos. 1 to 6, inclusive, to wit:

"(1) Application of C. H. Cain, guardian, to purchase an undivided interest of about two acres of land in the M. G. White league in Liberty county, which application was made to the county court on March 5, 1917.

"(2) The order of the county court of Liberty county, dated the 5th day of March, 1917, authorizing C. H. Cain to purchase said land, being an undivded interest of about two acres in the M. G. White league.

"(3) A deed from D. J. Harrison to Wyatt Hanks, dated the 15th day of April, 1917, conveying the oil, gas and other minerals in two acres of land specifically described by metes and bounds.

"(4) An application by C. H. Cain, guardian, for an order of sale made to the county court of Liberty county, dated April 9, 1917, to sell a certain undivided interest of about two acres in the M....